Chamberlain v. SSA CV-98-029-M 07/08/99 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Thomas Chamberlain, Plaintiff

v. Civil No. 98-29-M

Kenneth S. Apfel, Commissioner Social Security Administration, Defendant

O R D E R

Pursuant to

(g), claimant, Thomas

Chamberlain, moves to reverse the Commissioner's decision denying

his application for Social Security Disability Insurance Benefits

under Title II of the Social Security Act,

, and

Supplemental Security Income benefits under Title XVI of the

Social Security Act,

, et seg. (the "Act").

Defendant objects and moves for an order affirming the decision

of the Commissioner.

Factual Background

I. Procedural History.

On January 19, 1995, claimant filed an application for

disability insurance benefits and supplemental security income

under Titles II and XVI of the Act, alleging that he had been

unable to work since August 2, 1994. The Social Security

Administration denied his application initially and on

reconsideration. On August 8, 1995, claimant, his attorney, and a vocational expert appeared before an Administrative Law Judge,

who considered claimant's application de novo. On February 21,

1996, the ALJ issued his order, concluding that although claimant

was unable to perform his past relevant work, he retained the

residual functional capacity to perform a range of medium work.

Administrative transcript, at 20. And, although he concluded

that claimant's ability to secure gainful employment was further

limited by certain non-exertional limitations, the ALJ determined

that he was capable of performing a number of sedentary and light

jobs which exist in substantial numbers in the national economy.

Accordingly, the ALJ concluded that claimant was not disabled, as

that term is defined in the Act, at any time through the date of

his decision.

Claimant then sought review of the ALJ's decision by the

Appeals Council. On December 17, 1997, the Appeals Council

determined that the ALJ's decision was supported by substantial

evidence, thereby rendering it a final decision of the

Commissioner, subject to judicial review. On January 15, 1998,

claimant filed a timely action in this court, asserting that the

ALJ's decision was not supported by substantial evidence and

seeking a judicial determination that he is disabled within the

meaning of the Act. Subseguently, claimant filed a "Motion for

Order Reversing Decision of the Commissioner" (document no. 11).

The Commissioner objected and countered with a "Motion for Order

2 Affirming the Decision of the Commissioner" (document no. 16).

Those cross-motions are pending.

II. Stipulated Facts.

Pursuant to this court's Local Rule 9.1(d), theparties have

submitted a statement of stipulated facts which, because it is

part of the court's record (document no. 15), need not be

recounted in this opinion.

Standard of Review

I . Properly Supported Findings by the ALJ are _____ Entitled to Deference.

Pursuant to

(g), the court is empowered "to

enter, upon the pleadings and transcript of the record, a

judgment affirming, modifying, or reversing the decision of the

Secretary [now, the "Commissioner"], with or without remanding

the cause for a rehearing." Factual findings of the Commissioner

are conclusive if supported by substantial evidence. See

(g), 1383(c)(3); Irlanda Ortiz v. Secretary of

Health and Human Services,

(1st Cir. 1991) .1

Moreover, provided the ALJ's findings are supported by

substantial evidence, the court must sustain those findings even

1 Substantial evidence is "such relevant evidence as a reasonable mind might accept as adeguate to support a conclusion." Consolidated Edison Co. v. NLRB,

(1938). It is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence. Consolo v. Federal Maritime Comm'n.,

(1966).

3 when there may also be substantial evidence supporting the

claimant's position. See Gwathnev v. Chater,

, 1045

(8th Cir. 1997) (The court "must consider both evidence that

supports and evidence that detracts from the [Commissioner's]

decision, but [the court] may not reverse merely because

substantial evidence exists for the opposite decision."). See

also Andrews v. Shalala,

(9th Cir. 1995)

(The court "must uphold the ALJ's decision where the evidence is

susceptible to more than one rational interpretation."); Tsarelka

v. Secretary of Health & Human Services,

(1st

Cir. 1988) ("[W]e must uphold the [Commissioner's] conclusion,

even if the record arguably could justify a different conclusion,

so long as it is supported by substantial evidence.").

In making factual findings, the Commissioner must weigh and

resolve conflicts in the evidence. See Burgos Lopez v. Secretary

of Health & Human Services,

(1st Cir. 1984)

(citing Sitar v. Schweiker,

(1st Cir. 1982)). It

is "the responsibility of the [Commissioner] to determine issues

of credibility and to draw inferences from the record evidence.

Indeed, the resolution of conflicts in the evidence is for the

[Commissioner] not the courts." Irlanda Ortiz,

.

Accordingly, the court will give deference to the ALJ's

credibility determinations, particularly where those

determinations are supported by specific findings. See

Frustaalia v. Secretary of Health & Human Services,

,

4 195 (1st Cir. 1987) (citing Da Rosa v. Secretary of Health and

Human Services,

(1st Cir. 1986)).

II. The Parties' Respective Burdens.

An individual seeking Social Security disability benefits is

disabled under the Act if he or she is unable "to engage in any

substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected

to result in death or has lasted or can be expected to last for a

continuous period of not less than 12 months."

(1)(1)(A). See also 42 U.S.C. § 1382c(a)(3). The Act

places a heavy initial burden on the claimant to establish the

existence of a disabling impairment. See Bowen v. Yuckert,

(1987); Santiago v. Secretary of Health and

Human Services,

(1st Cir. 1991). To satisfy that

burden, the claimant must prove that his impairment prevents him

from performing his former type of work. See Gray v. Heckler,

(1st Cir. 1985) (citing Goodermote v. Secretary

of Health and Human Services,

(1st Cir. 1982)).

Nevertheless, the claimant is not reguired to establish a doubt-

free claim. The initial burden is satisfied by the usual civil

standard: a "preponderance of the evidence." See Paone v.

Schweiker,

(D. Mass. 1982).

In assessing a disability claim, the Commissioner considers

objective and subjective factors, including: (1) objective

5 medical facts; (2) the claimant's subjective claims of pain and

disability as supported by the testimony of the claimant or other

witnesses; and (3) the claimant's educational background, age,

and work experience. See, e.g., Avery v. Secretary of Health and

Human Services,

(1st Cir. 1986); Goodermote,

. Provided the claimant has shown an inability to

perform his previous work, the burden shifts to the Commissioner

to show that there are other jobs in the national economy that he

can perform. See Vazquez v. Secretary of Health and Human

Services,

(1st Cir. 1982). If the Commissioner

shows the existence of other jobs which the claimant can perform,

then the overall burden to demonstrate disability remains with

the claimant. See Hernandez v. Weinberger,

(1st Cir. 1974); Benko v. Schweiker,

(D.N.H. 1982) .

When determining whether a claimant is disabled, the ALJ is

reguired to make the following five inguiries:

(1) whether the claimant is engaged in substantial gainful activity;

(2) whether the claimant has a severe impairment;

(3) whether the impairment meets or eguals a listed impairment;

(4) whether the impairment prevents the claimant from performing past relevant work; and

(5) whether the impairment prevents the claimant from doing any other work.

6

. See also

. Ultimately,

a claimant is disabled only if his:

physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

(d)(2)(A). See also 42 U.S.C. § 1382c(a)(3)(B).

With those principles in mind, the court reviews claimant's

motion to reverse and the Commissioner's motion to affirm his

decision.

Discussion

I. Background - The ALJ's Findings.

In concluding that Mr. Chamberlain was not disabled within

the meaning of the Act, the ALJ properly employed the mandatory

five-step seguential evaluation process described in

and 416.920. Accordingly, he first determined that

claimant had not been engaged in substantial gainful employment

since August 2, 1994. Next, he considered whether any of

claimant's impairments were severe. In that regard, the ALJ

concluded that "the medical evidence shows severe impairments of

7 impaired hearing, anxiety, depression and varicose veins."

Transcript at 17.2

The ALJ also concluded, however, that claimant's high blood

pressure (which is controlled by medication), his avoidant

personality disorder, low-average intelligence, and history of

tinea versicolor did not impose any substantial work limitations

and were not severe under the Act.

Assessing claimant's

impairments, both alone and in combination, the ALJ determined

that "there is no combination of impairments so severe that the

reguirements of any section of the Listings are met and no

condition of medical eguivalence."

Next, the ALJ concluded that claimant is able to perform the

exertional reguirements of at least medium work (which

necessarily includes the finding that claimant could also perform

the exertional reguirements of light and sedentary work). He

also held that claimant's non-exertional limitations imposed only

"a moderate decrease in his ability to complete detailed or

complex work as well as to cope with high-stress work."

Transcript at 18. Conseguently, the ALJ determined that

claimant:

2 It is worth noting that the ALJ's conclusion that claimant's hearing impairment is "sever" is based upon an evaluation of claimant's uncorrected hearing (that is, his ability to hear without the use of a hearing aid). needs a job with little contact with the public and co­ workers. I find him unable to perform jobs where average production quotas are required or where he is closely supervised. In combination with his hearing impairment, he heeds to have job functions demonstrated one or two times.

Finally, after considering claimant's residual functional

capacity, including both his exertional and non-exertional

limitations, and relying, at least in part, upon the testimony of

the vocational expert, the ALJ concluded that there is a

substantial number of jobs in the national economy which claimant

is capable of performing. Accordingly, he held that claimant was

not disabled within the meaning of the Act.

II Use of the Grid in Combination with V.E. Testimony.

In light of the ALJ's conclusion that claimant retained the

RFC to perform the exertional requirements of a range of medium

work, the Medical-Vocational Guidelines, 20 C.F.R Part 404,

Subpart P, Appendix 2 (the Grid"), would direct a conclusion that

claimant is not disabled. However, because claimant also suffers

from non-exertional limitations, direct application of the Grid -

which takes into account only exertional limitations - is not

appropriate.

Nevertheless, the Court of Appeals for the First Circuit has

recognized that there are circumstances under which an ALJ may

use the Grid as a "framework for consideration of how much the individual's work capability is further diminished." Ortiz, 890

F.2d at 524 (quoting 20 C.F.R Part 404, Subpart P, Ap p . 2, §

200.00(e)(2)). Here, the ALJ did just that:

Although the claimant's limitations do not allow him to perform the full range of medium work, using the above­ cited rule as a framework for decision-making there is a significant number of jobs which the claimant can perform.

Transcript at 21.

Additionally, it is important to note that the ALJ did not

simply use the Grid in a vacuum. Instead, he solicited the

expertise of a vocational expert. In presenting his hypothetical

questions to the vocational expert, the ALJ asked her to assume

that an individual suffered from each of the exertional and non-

exertional limitations which, when viewed as a whole, claimant

says render him disabled: (1) an ability to lift no more than 50

pounds occasionally and 25 pounds frequently; (2) an inability to

perform repetitive bending and stooping; (3) an inability to

reach, handle, finger, and feel; (4) an inability to tolerate

environments characterized by dust or chemical fumes; (5) an

inability to work at heights; (6) a moderate decrease in the

ability to perform detailed or complex work; (7) an inability to

have more than limited supervision and contact with the public;

(8) a decreased ability to cope with high stress work; and (9) an

ability to meet only limited production quotas. Those

hypothetical limitations are consistent with claimant's

10 limitations, as disclosed in the medical records as well as

claimant's description of his daily activities and hobbies. They

are also consistent with the ALJ's conclusion that claimant

"requires no regular medical attention; he has not followed

through with suggested medical advice, including securing hearing

aids; and, he requires no significant medications or treatment

modalities for his condition." Transcript at 19.

Notwithstanding those limitations, the vocational expert

testified that there is a substantial number of jobs in the

national economy which an individual with those limitations could

perform. Transcript at 53-80. The ALJ accepted the vocational

expert's testimony and relied upon it in reaching his

determination that claimant was not disabled.

Claimant says that he is incapable of performing any of the

jobs identified by the vocational expert. While the court does

not necessarily agree with claimant's assessment of his ability

to perform many of those jobs, a detailed discussion of

claimant's views on that issue is not necessary. Among other

things, the vocational expert opined, and the ALJ concluded, that

claimant could perform sedentary and light security jobs, which

exist in significant numbers in the national economy. As to that

conclusion, claimant raises two objections.

A. Effect of Claimant's Hearing Impairment.

11 Claimant asserts that his hearing impairment substantially

reduces the number of such jobs he can actually perform. The

vocational expert testified, however, that while the ability to

hear well is important to someone working as a security guard, it

is far less important one working as a surveillance system

monitor. Transcript at 66. Perhaps more importantly, however,

the ALJ could have determined that, although claimant's

uncorrected hearing creates a "severe impairment," that

impairment lends itself to rather simple correction through

amplification. The medical records (see, e.g., transcript at

179-81; 198-99) and plaintiff's own statements regarding his

daily activities (e.g., his use of an audio amplifier on his

television set) support that conclusion. In fact, the ALJ

specifically noted in his decision that claimant has not followed

medical advice he has received regarding the purchase of a

hearing aid. Transcript at 19.

Implicit in any finding of disability is the conclusion that

a claimant's impairment(s) cannot be readily corrected by

reasonable methods of treatment. Accordingly, the pertinent

regulations specifically instruct claimants that "[i]n order to

get benefits, you must follow treatment prescribed by your

physician if this treatment can restore your ability to work."

20 C.F.R §§ 404.1530(a), 416.930(a). Plainly, this regulation is

rooted in reason and logic: a claimant is not disabled if his or

her disabling limitation lends itself to reasonable and readily

12 accessible correction. The pertinent regulations go on to

provide that "[i]f you do not follow the prescribed treatment

without a good reason, we will not find you disabled." 20 C.F.R

§§ 404.1530(b), 416.930 (b). See also Tsarelka,

.

The Court of Appeals for the Tenth Circuit has elaborated

upon those regulations and articulated four factors, each of

which must be present in order for the ALJ to conclude that a

claimant's failure to follow prescribed treatment precludes the

recovery of disability benefits. Although the court of appeals

for this circuit has yet to expressly adopt the Tenth Circuit's

test, it still provides useful guidance. Under that test, a

failure to follow prescribed treatment will preclude a finding of

disability if each of the following factors is present:

(1) the treatment at issue should be expected to restore the claimant's ability to work; (2) the treatment must have been prescribed; (3) the treatment must have been refused; (4) the refusal must have been without justifiable excuse.

Pacheco v. Sullivan,

(10th Cir. 1991)

(guoting Teter v. Heckler,

(10th Cir. 1985)).

Here, the record certainly supports the conclusion that each

of those four factors was present and the ALJ properly concluded

that claimant's impaired hearing did not limit his ability to

secure gainful employment. First, the medical evidence

establishes that claimant's hearing impairment lends itself to,

13 at a minimum, partial correction through amplification. See

Report of Hamden Moody, Jr., M.D., transcript at 198-99. In a

subsequent letter from Dr. Moody to claimant's attorney. Dr.

Moody explained:

Mr. Chamberlain's audiogram shows a moderate-to-severe volume loss, and on testing the clarity, which is the speech discrimination score, he scores 100% in both ears. This indicates that as long as the volume is increased the hearing clarity should be in the normal range. With the 100% discrimination score this usually indicates that the patient should do well with amplification from hearing aids. . . . Mainly based on this test, the patient should be a good candidate for hearing aids. The only simple solution would be to have the patient get a hearing aid trial and see what the improvement is. However, the tests indicate that he should do well with amplification.

Transcript at 229.

Nothing in the record suggests that amplification would not

likely restore claimant's hearing to the normal range. In fact,

the record shows that each treating expert who expressed an

opinion on the matter informed plaintiff that use of a hearing

aid would likely benefit him substantially. It is equally clear

that, notwithstanding the medical advice that he received,

claimant did not obtain a hearing aid. The only reason suggested

in the record for plaintiff's failure to obtain a hearing aid is

his concern that he could not afford the required batteries. See

Transcript at 53 (claimant testified that he could not afford

batteries for the amplifier he used) and 58 (in posing his

hypothetical to the vocational expert, the ALJ noted that, "The

14 amplification helped him. He just doesn't have the money to buy

batteries."). Absent further evidence suggesting that claimant's

concern about the cost of batteries was a legitimate basis upon

which to rest his refusal to obtain a hearing aid, the court must

view his conduct as "without justifiable excuse."

Additionally, claimant's failure to follow the advice of his

physicians and obtain a hearing aid suggests that his hearing

loss has had little effect on his ability to effectively

communicate with others; if his uncorrected hearing did, in fact,

adversely affect his ability to communicate with others, it is

reasonable to assume that he would have, at a minimum, more fully

explored the possibility of obtaining a hearing aid. His failure

to do so certainly undermines his claim that his impaired hearing

is a factor which substantially limits his ability to secure

gainful employment. See, e.g., Audiologist's report, transcript

at 17 9 ("When speech stimuli were presented at a sensation level

of 40dB, discrimination ability was excellent for both ears.");

Report of Scott Diehl, M.D., transcript at 190 ("Assessment: The

patient can understand spoken language guite easily. It does

reguire one to speak loudly and clearly, but he can [understand]

guite easily.") .

Conseguently, to the extent that the positions of security

guard and/or surveillance system monitor actually demand auditory

acuity, the ALJ could have reasonably concluded that claimant was

15 capable of performing those jobs. He certainly could have

concluded that plaintiff could (and probably should) have heeded

the advice of treating experts and, at a minimum, explored the

possibility of acguiring a hearing aid, which the medical

evidence of record suggests would have enabled him to perform

those jobs without any problem. See transcript at 58 (in his

hypothetical to the vocational expert, the ALJ assumed that

claimant would acguire and use a hearing aid and, therefore,

decreased capacity to hear was not a factor which he asked the

vocational expert to assume).

B. Claimant's Inability to Handle Stress.

Claimant also asserts that the ALJ failed to adeguately

account for his claims that he cannot handle stressful situations

and suffers periodic episodes of anxiety attacks. The court

disagrees. In his hypothetical, the ALJ adeguately accounted for

those factors by describing an individual who must have limited

contact with the public and whose work would not involve

substantial production guotas, complex assembly tasks, or close

supervision. Based upon the evidence presented by claimant

relating to his low tolerance for stress and his anxiety attacks,

the ALJ's hypothetical was more than adeguate.

Although he claims that the interaction of his inability to

cope with stressful situations and his anxiety attacks renders

him disabled, plaintiff produced little evidence describing the

16 nature of those impairments. When asked by examining experts, he

could provide little insight into what triggered his anxiety

attacks, nor could he describe what caused him to perceive

stress. See, e.g.. Report of James Claiborn, Ph.D., transcript

at 194. All claimant could say was that he had difficulty

meeting demanding production guotas at his last job and, since

leaving that job, concerns over obtaining future employment

caused him anxiety. With little information to guide him in that

regard, the ALJ posed a reasonable hypothetical to the vocational

expert which was properly based (to the extent possible) on the

facts of record concerning claimant's limitations.

Stated somewhat differently, it is not enough for a claimant

to simply say that he is unable to tolerate stressful situations

and suffers from freguent anxiety attacks without elaboration and

then challenge as insufficient an ALJ's hypothetical which

attempts, to the extent possible based upon the limited record,

to account for those limitations. Nor can such a claimant

reasonably claim that the ALJ failed to fully develop the factual

record, when it is clear that plaintiff himself was unable to

describe the circumstances or situations which precipitated his

anxiety attacks. And, if claimant had additional (and previously

undisclosed) evidence or testimony concerning the nature or

debilitating effects of those limitations or the circumstances

that precipitated his anxiety attacks, the time to present it was

at the hearing, when the ALJ (or claimant's counsel) would have

17 had the opportunity to fashion an appropriately detailed

hypothetical.

Conclusion

At step five of the sequential analysis, the Commissioner

bore the burden of proving that there were jobs in the national

economy which claimant was capable of performing. He carried

that burden. Accordingly, claimant's motion to reverse the

decision of the Commissioner (document no. 11) is denied, and the

Commissioner's motion to affirm his decision (document no. 16) is

granted. The Clerk of the Court shall enter judgment in favor of

the Commissioner and close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

July 8, 1999

cc: Raymond J. Kelly, Esq. David L. Broderick, Esq.

18